ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES, ET AL.,
APPELLANTS V. MINNESOTA NEWSPAPER ASSOCIATION, INC.
No. 87-1956
In the Supreme Court of the United States
October Term, 1988
On Appeal From The United States District Court For The District Of
Minnesota
REPLY BRIEF FOR THE APPELLANTS
1. Appellee suggests (Br. 5-8) that our appeal in No. 87-1956 is
moot because our interpretation of the prize list clause of 18 U.S.C.
1302 eliminates any controversy between the government and appellee.
/1/ Appellee states that it is interested only in publishing lottery
prize lists in the form of news stories (or similar commentary) or
advertisements. Since, in appellee's view, we have argued that the
prize list clause does not apply either to news stories or to
advertisements, appellee submits that the prize list clause will not
affect appellee's interests, and this case is now moot. Appellee is
wrong for three reasons.
First, appellee has misconstrued our interpretation of Section
1302. We argued in our opening brief that the district court erred in
ruling that the prize list clause applies to news stories, editorials,
or similar commentary about lotteries. Fed. Br. 15-30. Noting that
lists of prizes were often published separately during the period
before the Act became law, we argued that Congress adopted a prize
list clause in addition to the advertisement clause in order to ensure
that the Act would apply to publications that list the prizes offered
by a lottery, even if that list was not accompanied by the type of
promotional features that would normally be found in an
"advertisement." Fed. Br. 23-24 & n.27. Compare id. App. 13a (a
contemporary adversitement) with id. at 14a (a contemporary prize
list). We did not contend, however, that the prize list clause does
not apply to advertisements that contain prize lists. Advertisements
that list lottery prizes, such as the publication reprinted in an
appendix to our opening brief, id. at 11a-12a, would be covered by
both clauses of the Act. In other words, the two clauses in the
statute overlap somewhat; they are complementary but not mutually
exclusive. Thus, since appellee wishes to carry lottery-related
advertising that includes prize lists (Appellee Br. 5-6, 10, 20 n.14),
the prize list clause will affect appellee's interests.
Second, the mootness doctrine that appellee invokes bars the courts
from exercising jurisdiction over a case in which the plaintiff will
neither benefit from a favorable judgment nor suffer from an adverse
one. E.g., DeFunis v. Odegaard, 416 U.S. 312 (1974). That is not
true here. On the one hand, if the judgment below is affirmed
appellee's members can immediately and without restriction use the
mails to distribute lottery prize lists that appellee's member
newspapers have been paid to publish. On the other hand, if the
judgment below is reversed appellee's member newspapers will not be
free to use the mails to distribute such prize lists until the
exemptions added by the Charity Games Advertising Clarification Act of
1988, Pub. L. No. 100-625, 102 Stat. 3205, go into effect in 1990.
The Court's affirmance or reversal of the judgment below will
therefore have a beneficial or burdensome effect on appellee, and that
is sufficient to show that the controversy between the parties is
still a live one. /2/ A case does not become moot simply because the
party that prevailed in the court below concedes that the judgment
below is wrong, either in whole or in part, and does not seek to
defend it. See, e.g., Ray v. United States, No. 86-281 (May 18,
1987); Marks v. United States, 430 U.S. 188, 191-192 n.6 (1977);
Sibron v. New York, 392 U.S. 40, 58-59 (1968); Young v. United
States, 315 U.S. 257, 258-259 (1942). There is no reason to adopt a
different rule when the successful party in the court below decides
not to challenge affirmatively the position taken by the party that is
seeking to have the judgment below overturned. /3/
Third, although appellee has not submitted any argument why the
prize list clause should be read to apply to news stories and
editorials, appellee nevertheless asks this Court to leave in place
that portion of the judgment holding the application of the prize list
clause to such expression unconstitutional. See Appellee Br. 21
("This Court should vacate the decision below to the extent that it
applies to the mailing of prize lists contained in speech other than
news stories and editorials") (emphasis added). Appellee's position
on the merits therefore differs from ours. We have argued that the
prize list clause does not apply to news stories and editorials;
appellee maintains that the prize list clause is unconstitutional as
it applies to news stories and editorials. Appellee thus asks the
Court to render a different judgment than the one we urge.
2. Appellee also suggests (Br. 8-10) that the government's appeal
should be dismissed because the record in this case is insufficient
for the Court to decide whether the prize list is facially valid.
That suggestion lacks merit.
The questions before this Court are legal, not factual. The first
involves the meaning of the prize list clause. That is a
straightforward question of statutory construction as to which an
elaborate factual record is unnecessary. The second concerns the
facial validity of the prize list clause, as so construed. An
elaborate evidentiary record is unnecessary to resolve that issue,
since the issue whether a legislative restriction on commercial speech
is lawful does not ordinarily turn on adjudicative facts. The purpose
of the Anti-Lottery Act of 1890 -- to help states that forbid private
lotteries to protect the public from their harms -- is evident from
the legislative and historical background of that law and from In re
Rapier, 143 U.S. 110 (1892), and Ex parte Jackson, 96 U.S. 727 (1877).
A factual record is unnecessary to decide whether that purpose is
"substantial" under Central Hudson Gas & Elec. Corp. v. Public Service
Comm'n, 447 U.S. 557 (1980), since this Court has repeatedly held that
it is. Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328,
341 (1986). /4/ An elaborate factual record is unnecessary to decide
whether the Act directly advances that purpose. That question is
generally a matter of legislative judgment, not adjudicative fact, as
the Court recognized in Posadas and other cases, /5/ and this Court
implicitly resolved that issue when upholding the Act in In re Rapier.
Finally, a factual record is unnecessary to decide whether the
mailing restrictions in Section 1302 unduly restrict speech. That is
a classic question of law, not fact. /6/
At bottom, appellee has confused the difference between a ruling
that a statute is unconstitutional on its face and a ruling that a
statute is unconstitutional as applied. Appellee is correct that the
record in this case does not contain examples of the types of prize
lists appellee's member newspapers would like to print. The record is
therefore insufficient to decide whether the prize list clause is
invalid as applied to a particular publication. But the district
court held the prize list clause facially invalid, and the record is
ample to determine whether that ruling is correct. /7/ A law may not
be held facially invalid under the First Amendment unless its every
application creates an impermissible risk of suppression of ideas, or
poses a realistic danger that it will significantly compromise
recognized First Amendment protections of parties not before the
court. New York State Club Ass'n, Inc. v. New York, No. 86-1836 (June
20, 1988), slip op. 8. If the prize list clause can lawfully be
applied under some circumstances, and appellee appears to admit that
it can (see Appellee Br. 13, referring to Horner v. United States, 147
U.S. 449 (1893)), then the district court erred in holding that clause
facially unconstitutional, because the overbreadth doctrine does not
apply to commercial speech. E.g., Hoffman Estates v. The Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 496-497 (1982); Central Hudson,
447 U.S. at 565 n.8. The proper course in this situation is to
reverse the judgment below, not to remand the case for an evidentiary
hearing.
3. Amici American Civil Liberties Union and Minnesota Civil
Liberties Union maintain (ACLU-MCLU Br. 13-27) that the district court
was correct in ruling that the prize list clause applies to news
stories. Amici rely on the text of that clause, but they do not
discuss its historical background, its purposes, the Court's decision
in Horner v. United States, supra, or any of the other materials we
cited in our brief. Those materials show that Congress adopted that
law in order to prevent the mails from being used to promote the
financial success of a lottery, in particular the Louisiana Lottery,
and not to prevent newspapers from sending news stories about
lotteries through the mails. /8/ Finally, amici have offered no good
reason why the prize list clause should not be construed in a manner
that would avoid an unconstitutional interpretation. In a closely
analogous context, this Court in United States v. 12 200-Ft. Reels of
Super 8MM. Film, 413 U.S. 123, 130 n.7 (1973), said that it would
interpret the term "obscene" in a federal statute prohibiting the
importation of obscene material in a manner that was consistent with
the definition of obscenity adopted in Miller v. California, 413 U.S.
15 (1973). A similar analysis is appropriate in this case.
4. Appellee (Br. 10-20) and amicus Association of National
Advertisers (ANA Br. 27-45) contend that our definition of commercial
speech is wrong. Appellee's proposed alternative definition of
commercial speech, however, is underinclusive. Appellee would limit
the commercial speech doctrine to expression that either proposes a
commerical transaction or is an integral part of a commercial
transaction. Appellee Br. 12-14. But this would exclude from the
scope of commercial speech general promotional or "image advertising"
-- such as a commercial touting the benefits of a new line of shampoo,
or a pamphlet extolling the benefits of a line of sneakers. Such
material clearly promotes or advances a commercial transaction, even
though it is not "directly related to a proposed commercial
transaction" (Appellee Br. 12). And this Court has never suggested
that promotional advertising of this type is not commercial speech.
See Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
Otherwise, most of appellee's and ANA's criticisms of our
definition rest on a misinterpretation of it. In our view, for speech
to be commercial it must relate to an ordinary commercial transaction
and must be made by a person with a direct financial interest in the
transaction or in its promotion. For example, a bona fide news story
about a bingo game or the merger of two corporations (Appellee Br. 14,
16-17) would not be commercial speech, because the newspaper would not
have been paid to write it. And a corporation's criticism of a
proposed state income tax (Appellee Br. 15-16, discussing First Nat'l
Bank v. Bellotti, 435 U.S. 765 (1978)), or a physician's objection to
socialized medicine (ANA Br. 30) would not be commercial speech
because such criticism would not promote an ordinary commercial
transaction, even though the speaker might profit, for example, from
the defeat of a proposed state income tax or a plan of socialized
medicine. Fed. Br. 20-22, 29-30. Of course, in drawing a line
between commercial and noncommercial speech, problems will emerge
under our proposed definition, as under any other, and the courts
should perhaps be willing to give the benefit of the doubt to speech
that falls close to the line. But in this particular context, our
proposed definition should be relatively easy to apply. A newspaper
can easily tell, for example, whether it has been paid to publish a
list of the prizes awarded at a lottery drawing. Accordingly, there
is no basis to appellee's and ANA's fears that our proposed definition
of commercial speech will deter newspapers from publishing bona fide
news stories about lotteries.
In any event, it is not necessary for the Court to agree or
disagree with our proposed definition of commercial speech in order
for the Court to reverse the judgment below. As we pointed out in our
opening brief (at 29 n.32), a list of the prizes to be awarded by a
lottery at a future drawing is an implicit proposal to engage in a
commercial transaction and therefore falls within "the core notion of
commercial speech." Bolger v. Youngs Drug Products Corp., 463 U.S. at
66. See Central Hudson, 447 U.S. at 580 (Stevens, J., concurring in
the judgment) ("A salesman's solicitation, a broker's offer, and a
manufacturer's publication of a price list or the terms of his
standard warranty would unquestionably fit within this concept.")
(footnote omitted). The statute unquestionably applies to prize lists
such as the circular containing a list of prizes awarded in the
lottery conducted by the Austrian government at issue in Horner v.
United States, 147 U.S. at 451-453 n.1, 467, and such a prize list
would fall within the core notion of commercial speech. /9/
Accordingly, this Court's decision in Horner provides a sufficient
basis for reversing the district court's judgment that the prize list
clause is facially unconstitutional, since the Horner case shows that
the prize list clause can be applied in a constitutional manner. See
New York State Club Ass'n, Inc. v. New York, slip op. 8.
5. Appellee (Br. 20 n.14) and amicus ANA (ANA Br. 27-45) also
contend that the mailing restrictions in the prize list clause are
invalid under the standard adopted in Central Hudson. Appellee,
however, makes no argument to support that conclusion. ANA, for its
part, overlooks the crucial difference between commercial
organizations and commercial speech. See ANA Br. 32. Just as a
commercial organization may engage in political expression in order to
advance its profitmaking interests, e.g., First Nat'l Bank v.
Bellotti, supra, so too a charitable organization may use commercial
speech in order to serve its eleemosynary goals. It is the nature of
the expression that an organization uses, not the nature of the
organization, that determines whether its expression is commercial or
political. See First Nat'l Bank v. Bellotti, supra. Otherwise, ANA
principally relies (see ANA Br. 27-45) on the arguments that were made
in dissent in the Posadas case, /10/ which we have already addressed
in our opening brief.
6. Finally, amicus ANA contends (ANA Br. 13-22) that 18 U.S.C. 1302
cannot constitutionally be applied to forbid the use of the mails to
materials that are lawful at either the point of distribution or the
point of receipt. ANA's argument blends together the notion that
Congress lacks a general police power, the theory that the First
Amendment should prohibit all legislative efforts to restrict the
commercial promotion of legal activities, and the belief that a
restriction on the ability of a majority of states to promote private
commercial gaming is inconsistent with principles of federalism. None
of those theories, or all three considered together, are persuasive.
a. The district court correctly held that it is irrelevant that
private lotteries are legal under Minnesota law. J.S. App. 10a.
Congress's power under the Postal Clause of Art. I, Section 8, Cl.7,
"embraces the regulation of the entire postal system," Ex parte
Jackson, 96 U.S. at 732, and authorizes Congress to close the mails to
the intra- or interstate distribution of commercial speech promoting a
lottery whether or not it is legal under a particular state's law. Ex
parte Jackson, In re Rapier, and Posadas held that the federal and
state governments may restrict the commercial promotion of gambling in
order to protect the public against the potentially injurious effects
that gambling can have on society. /11/ Moreover, In re Rapier
implicitly rejected ANA's contention that Congress cannot exercise its
postal power in a manner that is inconsistent with state law, because
the lottery at issue there, the Louisiana Lottery, was lawful under
state law. Those decisions, which ANA barely cites and does not
distinguish, directly support the constitutionality of Section 1302.
In dealing with the mailing of lottery-related promotional
materials, Congress has followed the same policy that it has endorsed
for more than a century regarding the use of the mails to distribute
obscene materials. Since the Comstock Act of 1872, ch. 335, Section
148, 17 Stat. 302, Congress has prohibited the mailing of obscene
matter without regard to whether the mailing is inter- or intrastate,
or whether the state in which the matter is sent or received itself
forbids the distribution of obscene materials. The Court expressly
upheld that scheme in Smith v. United States, 431 U.S. 291 (1977),
holding that Congress can make it a federal offense to mail obscene
materials into a state that does not itself make the possession of
obscene materials a crime. As Justice Blackmun wrote for this Court,
"the State's right to abolish all regulation of obscene material does
not create a correlative right to force the Federal Government to
allow the mails or the channels of interstate or foreign commerce to
be used for the purpose of sending obscene material into the
permissive State." 431 U.S. at 307. Smith, like In re Rapier,
therefore recognizes that whenever Congress regulates the use of the
mails, it is constitutionally irrelevant whether the state where the
mail is sent or received also regulates the underlying activity.
Bigelow v. Virginia, 421 U.S. 809 (1975), on which ANA heavily
relies (ANA Br. 18, 20, 38-39, 43) is inapposite. Bigelow involved
the constitutionality of the application of a Virginia law restricting
the advertising of abortion services to a newspaper advertisement
about the availability of abortions in New York. The advertising
restrictions in that case were held invalid, as the Court explained in
Posadas, 478 U.S. at 345-346, because "the underlying conduct * * *
was constitutionally protected and could not have been prohibited by
the State." That objection cannot be raised here. ANA relies (ANA Br.
38-39) on a passage in Bigelow explaining that Virginia did not have a
legitimate interest in restricting the advertising of goods or
services that could be legally sold in New York, but that point does
not apply to this case. If a state can ban lottery advertising within
its borders, and Posadas held that a state can, /12/ then Congress
should be free to assist that state to implement its policy judgment
by preventing other states from using the mails to distribute lottery
advertising.
b. There is also no merit to ANA's argument that the First
Amendment forbids Congress from placing limits on the commercial
advertising of an activity that is legal under state law. Aside from
the fact that Posadas rejected that proposition, ANA's argument is
unpersuasive as a matter of policy. Gambling is a recurring problem
of an imperfect society, and Congress and the states may prohibit that
activity entirely. The experience with Prohibition, however, suggests
that a ban on a disfavored activity, such as the consumption of
alcohol, can be more harmful than a system allowing that activity to
be conducted under strict governmental oversight and control.
Governments therefore compromise: They allow some forms of gaming,
but limit their operation. A common limitation is to restrict or
forbid advertising, since advertising spurs demand.
Section 1302 typifies the compromise adopted by governments on this
issue. It represents an intermediate position between imposing a ban
on a potentially harmful activity, and permitting the sponsors of that
activity freely to enhance consumer demand through advertising. As
Posadas noted, only "a strange constitutional doctrine" would require
government to suffer unlimited promotion of a commercial activity that
may be prohibited altogether. 478 U.S. at 346. /13/
c. Finally, there is no merit to ANA's suggestion that Section 1302
is unconstitutional because it is inconsistent with the judgment of a
majority of the states that some forms of gambling should be
permitted. Congress adopted a uniform rule in order to protect the
interests of those states that have decided that private lotteries are
contrary to public policy. That rule is not irrational simply because
those states, which were once in a majority, are now in a minority.
ANA cites no decision suggesting that Congress lacks the authority to
decide which of two competing policies should be implemented as a
matter of federal law, or that, when refereeing a policy dispute among
the states, Congress must endorse whatever policy is held by the
majority of states. ANA's argument goes to the issue whether it is
wise to restrict the distribution of lottery-related materials through
the mails, and Congress has recently decided to relax the mailing
restrictions somewhat. But that issue is for Congress to resolve,
since Congress is in the best position to resolve interstate disputes.
Cf. South Carolina v. Baker, No. 94, Orig. (Apr. 20, 1988), slip op.
5-7; Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.
528, 550-554 (1985). /14/
For the foregoing reasons and those stated in our opening brief, it
is respectfully submitted that the judgment of the district court
should be reversed.
WILLIAM C. BRYSON
Acting Solicitor General
MARCH 1989
/1/ Appellee also suggests (Appellee Br. 3) that the case is moot
because of the enactment of the Charity Games Advertising
Clarification Act of 1988, Pub. L. No. 100-625, 102 Stat. 3205, and
the Indian Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467
(1988). We showed in our opposition to appellee's earlier motion to
dismiss (at 2-4) why that claim is wrong, and this Court denied
appellee's motion on January 9, 1989. We rely here on our discussion
in our earlier pleading.
/2/ Appellee errs in relying (Br. 7-8) on Deakins v. Monaghan, No.
86-890 (Jan. 12, 1988). In Deakins, the plaintiffs brought an action
in federal court seeking the return of documents that the plaintiffs
claimed had been illegally seized. The lower federal courts rejected
the plaintiffs' claim for injunctive relief. By the time the case
reached this Court, a state trial court had assumed jurisdiction over
the seized materials and had ruled that certain of the documents had
been illegally seized; pending before that court were motions seeking
the return of the remaining documents. Under those circumstances,
affirming or reversing the court of appeals' judgment on the propriety
of abstaining from plaintiffs' claim for injunctive relief would not
have had any effect on the plaintiffs. The state trial court had
already granted their request in part, and the federal district court
could not have granted a later request for an injunction, since by
then the plaintiffs had been indicted. By contrast, in this case
appellee will benefit if the district court's judgment is upheld,
since that court entered an injunction against the government.
Appellee also will be adversely affected if the judgment below is
reversed, since appellee will then be subject to the prize list
clause, however it is construed.
/3/ If a case became moot simply because the party that was
successful in the lower court agreed that the judgment of that court
should be reversed, this Court could not invite an amicus curiae to
defend that judgment, as the Court has done on various occasions,
e.g., Bob Jones University v. United States, 456 U.S. 922 (1982), 461
U.S. 574 (1983), since this Court lacks authority to revive a case
that has become moot. Also, if the mootness doctrine extended as far
as appellee suggests, then the courts would be powerless ever to deny
a plaintiff's motion for a voluntary dismissal, and Fed. R. Civ. P.
41(a)(2), which conditions the grant of such motions on leave of the
district court, would be meaningless. See also Fed. R. App. P. 42(b)
(providing for dismissal by the parties and dismissal by the
appellant, but not providing for dismissal by the appellee);
appellee); Sup. Ct. R. 53.1 and 53.2(a) (same). Cf. Druid Hills
Civic Ass'n v. FHA, 833 F.2d 1545, 1549 (11th Cir. 1987), cert.
denied, No. 87-1891 (Oct. 3, 1988).
/4/ See also Phalen v. Virginia, 49 U.S. (8 How.) 163, 167-168
(1850); Boyd v. Alabama, 94 U.S. 645, 650 (1876); Ex parte Jackson,
supra; In re Rapier, supra; Stone v. Mississippi, 101 U.S. 814, 818
(1879); Champion v. Ames (Lottery Case), 188 U.S. 321, 355-356
(1903); Otis v. Parker, 187 U.S. 606, 609 (1903); Ah Sin v. Wittman,
198 U.S. 500, 505-507 (1905); Lewis v. United States, 348 U.S. 419,
422-423 (1955), overruled on other grounds, Marchetti v. United
States, 390 U.S. 39 (1968).
/5/ See Posadas, 478 U.S. at 340-344 (upholding a restriction on
gambling advertising in part since the legislature could reasonably
have believed that it was necessary to safeguard the public welfare
and would directly advance that interest); Metromedia, Inc. v. San
Diego, 453 U.S. 490, 508-509 (1981) (plurality opinion) (upholding a
restriction on commercial billboard advertising; rejecting the
argument that "the record is inadequate to show any connection between
billboards and traffic safety" by relying on the "common-sense
judgments" of legislators and lower courts that billboards do pose
substantial traffic safety hazards); Central Hudson, 447 U.S. at 569
("There is an immediate connection between advertising and demand for
(the product)."); New York State Liquor Auth. v. Bellanca, 452 U.S.
714, 717-718 (1981) (relying on a finding by the state legislature
that "(c)ommon sense indicates that any form of nudity coupled with
alcohol in a public place begets undesirable behavior" and that
"legislation prohibiting nudity in public will once and for all,
outlaw conduct which is now quite out of hand"). See also Dunagin v.
City of Oxford, 718 F.2d 738, 748-749 n.8 (5th Cir. 1983) (en banc),
cert. denied, 467 U.S. 1259 (1984) (whether the direct advancement
step of Central Hudson is met is not a question of fact under Fed. R.
Civ. P. 52(a)); Oklahoma Telecasters Ass'n v. Crisp, 699 F.2d 490,
500-501 (10th Cir. 1983) (same), rev'd on other grounds sub nom.
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). See
generally Fed. R. Evid. 201 Advisory Committee Notes on Proposed
Rules, 28 U.S.C. at 683-684 (discussing differences between
adjudicative and legislative facts).
/6/ Appellee's reliance (Br. 9-10) on Socialist Labor Party v.
Gilligan, 406 U.S. 583 (1972), is misplaced. There, the district
court held unconstitutional every law challenged by the plaintiffs
except one, which required a political party to submit a loyalty oath.
After both sides filed appeals to this Court, the state legislature
revised the election code and rendered moot all of the issues decided
by the district court except the constitutionality of the loyalty oath
requirement. This Court dismissed the plaintiffs' appeal on that
claim.
This case involves the opposite situation. The district court held
a federal statute unconstitutional at the plaintiff's request, and
enjoined the government from enforcing that law and related postal
laws against any party. The district court's judgment therefore
clearly injures the federal government by preventing a validly enacted
federal law from being enforced. Moreover, unlike the plaintiffs in
Socialist Labor Party, the federal government cannot bring another
lawsuit in order to vindicate its interests. And a dismissal of the
government's appeal is not a valid option in this case, since that
order would leave the district court's judgment intact. The decision
in Socialist Labor Party is therefore of no assistance to appellee.
/7/ The case appellee cites (Br. 9), Hodel v. Virginia Surface
Mining & Reclamation Ass'n, 452 U.S. 264 (1981), explains the very
difference that appellee obscures. There, the Court held that the
record was insufficient to determine whether the Surface Mining Act,
30 U.S.C. 1201 et seq., was unconstitutional as applied to any
particular parcel of land. The Court therefore limited its review to
the facial constitutionality of the Act. 452 U.S. at 294-297. That
is also the appropriate course here.
/8/ The other items cited by amici to support their argument are
irrelevant. Amici repeatedly, but erroneously, state (ACLU-MCLU Br.
10-11 n.5, 13-14, 18, 19) that the government argued in the district
court that the prize list clause should be read to reach prize lists
in news stories. In fact, it was the MCLU which took that position in
district court; the government took the opposite position. Compare
Amicus Minnesota Civil Liberties Union's Memorandum in Support of
Plaintiff's Motion for Summary Judgment 7-9 (Aug. 28, 1987) with
Defendants' Memorandum of Law in Response to the Memoranda Filed in
Support of Plaintiff's Motion for Summary Judgment 5-6 (Sept. 8,
1987). See also Memorandum of Law in Support of Defendants' Motion
for Summary Judgment 18-19 (filed Sept. 2, 1987). Amici also rely
(ACLU-MCLU Br. 23-24) on regulations adopted by the Postal Service to
implement the statute, but those regulations simply mirror the text of
the Act. Finally, amici's reliance (ACLU-MCLU Br. 25-27) on the
affidavits submitted by appellee is misplaced. The affidavits do not
state that we have applied the prize list clause to news stories, and
even if they did, that would at most show that individual postal
employees misread the prize list clause.
/9/ Even appellee concedes (Appellee Br. 13) that a prize list as
the one in Horner is at least "arguably" an example of the core notion
of commercial speech.
/10/ Indeed, ANA goes so far as to say that "(i)t is not necessary
to consider the correctness of the Posadas case since the federal
government lacks a national police power." ANA Br. 40 n.8.
/11/ We pointed out in our opening brief (at 34) that this Court
has recognized that Congress may exclude from the mails "such printed
matter or merchandise as may seem objectionable to it upon the ground
of public policy." Public Clearing House v. Coyne, 194 U.S. 497, 507
(1904). ANA suggests (ANA Br. 16) that the Coyne decision is no
longer good law in light of Hannegan v. Esquire, Inc., 327 U.S. 146
(1946), but ANA is wrong, for two reasons. First, Hannegan involved
the scope of the Postmaster General's authority under the
Classification Act of 1879, 39 U.S.C. 226 (1940 ed.), to deny second
class mailing privileges to a magazine. Hannegan held only that the
Postmaster General lacked inherent authority to exclude material from
the mail on public policy grounds. It did not hold that Congress
lacks the constitutional power under the Postal Clause to bar material
from the mails on such grounds. Second, Justice Black's opinion for
the Court in Donaldson v. Read Magazine, Inc., 333 U.S. 178 (1948),
expressly relied on Coyne as supporting the constitutinality of what
is now 39 U.S.C. 3005 (1982 & Supp. IV 1986), which authorizes the
Postmaster General to return mail sent by the perpetrator of a scheme
for obtaining money by fraudulent representations. 333 U.S. at
190-191. The decision in Coyne therefore is still good law.
/12/ Congress also recently concluded that the states have that
authority. As we explained in our opening brief (at 9), Congress
postponed until 1990 the effective date of the Charity Games
Advertising Clarification Act of 1988 in order to give the states the
opportunity to decide, in light of the new amendments to Section 1302,
whether to prohibit lotteries altogether, or to forbid lotteries from
advertising.
/13/ Professor Richard Epstein recently summarized the policy
rationale underlying laws such as 18 U.S.C. 1302, as well as the
justification for upholding the constitutionality of that policy
judgment. Epstein, Foreword: Unconstitutional Conditions, State
Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 65-66 (1988)
(footnote and emphasis omitted):
One reason to legalize gambling is simply damage control. It
is better that people not gamble, not only for their own
personal character, but also for the corrosive effect gambling
has on family and business obligations. Nonetheless, it is just
too costly to try to control gambling by criminal sanctions.
Better therefore to legalize the "disfavored" activity, which
can then be taxed to keep participation within reason.
Disfavored activities, moreover, need not be treated like all
other business activities. Advertisement stimulates business,
so it might be proper for a state to decide that, while it
should not ban gambling, it should nonetheless moderate its
growth by banning advertising. Surely if the issue were the
legalization of marijuana and other drugs, a respectable
argument could be made to allow their sale, subject to a general
tax and to prohibitions or restrictions on advertising, which,
because of advertising's public visibility, should be reasonably
easy to enforce. In effect we have adopted such a strategy with
respect to cigarettes, which are sold, heavily taxed, and
subject to advertisement restrictions, at least on television
and radio. Given the absence of any coherent social attitude
toward gambling (or toward drugs, alcohol, tobacco, or
prostitution), courts should exercise some deference to state
restrictions on such activities, which fall within the
traditional "morals" head of the police power as it relates to
both property and speech.
That, in a nutshell, is the reason why states restrict the
commercial promotion of gambling. The Anti-Lottery Act of 1890 was
designed to implement that policy judgment.
/14/ There is no merit to ANA's argument (ANA Br. 45-48) that
Congress cannot prohibit the use of the mails to promote private
lotteries if Congress allows the mails to be used to promote state-run
lotteries. The distinction drawn by 18 U.S.C. 1307 between state and
private lotteries does not discriminate on the basis of the content of
expression or the viewpoint of any speaker; the line it draws is
based on the nature of the party responsible for operating a lottery.
That distinction is also a rational one. Congress could reasonably
believe that a state-run lottery would be less susceptible to
infiltration by organized crime than a private lottery. Fed. Br. 36.
Moreover, Congress could reasonably decide that federalism principles
justified affording the states greater leeway in raising revenues than
private parties. Fed. Br. 33 & n.34.